Rep. Conyers, Once Again, Trying To Lock Up Federally Funded Research

from the isn't-that-a-problem? dept

Last year, Congress finally got fed up with the fact that publicly funded research was being locked up in various scientific journals. The whole journal business is something of a scam. Unlike other publications, the folks who write the papers for journals pay the journals to get their content published. On top of that, the "peers" who review the works aren't paid for their work either. In other words, these journals get a ton of free labor... and sometimes that labor pays them. And, then, on top of that, they charge ridiculously high prices for anyone to subscribe, claim the copyright on all submitted works, and are incredibly aggressive in enforcing that copyright. An academic I knew, at one point had to consider doing an experiment a second time just to get the same results, because mentioning the earlier results of his own study might violate the copyright of the journal. And, remember, much of this is happening with research that was funded by taxpayers.

So, Congress decided that any research that was funded by NIH (which funds about $30 billion in research each year) had to also be openly published one-year after it was published in the journal. It's hard to see how this damages the journals at all. They still retain a significant monopoly right on the works -- and have a year's head start. Yet, the journal publishers have been screaming bloody murder, and even trying to force academics to pay thousands of dollars to cover the "cost" of republishing the article in an open archiving database.

And, of course, those publishers have been complaining like crazy to Congress. Last year, Rep. Conyers (who also recently introduced the RIAA's preferred legislation, and was heavily backed by the American Intellectual Property Law Association in his most recent election) introduced some legislation to repeal this requirement, though the legislation went nowhere fast. However, he's wasted very little time introducing identical legislation this year.

Right before Conyers brought this legislation back, Stanford Professor John Willinsky published a well-worth reading article explaining why the publishers' objections to the requirement to openly publish makes no sense. Their general argument is that this is the government interfering with private businesses. But, of course, that's not true at all. As Willinsky notes, the only reason that particular private business exists as it does is because the government interfered in the form of giving them copyright:

What is held to be "unfair" in the bill is government interference with the publisher's exclusive ownership over research. This is not, however, a case of keeping the government's clumsy hand off a free market. The scholarly publishing market depends on government interference in the first instance. The government allows publishers to exercise monopoly rights over this research through copyright law, a form of market interference....

Furthermore, Willinsky mentions the original, Constitutional purpose behind said copyright: "To promote the progress of science and the useful arts..." Congress gets to determine what promotes the progress, and if it's shown that open publication of publicly funded works promotes that progress, then the journals should have no argument at all. But, argue they will... so, Public Knowledge and The Alliance for Taxpayer Access are both asking people to write their elected representatives to oppose this attempt to once again lock up the very research that we all funded as taxpayers.

Reader Comments

The Elephant and the Dragon

Another startling fact is that all too often, American companies decide to move their R&D arm to other countries which have more lax IP laws such as India or China. In doing so, they are actually able to innovate upon others ideas, a 180-degree turn from that which Representative Conyers is introducing.

This is another example of how private interests are trying to claim what they can as theirs in "The Land of Innovation"-- America.

But more startling is what has taken shape in the past few years: America is where the ideas come from, India and China is where it is developed, and then ultimately brought back to the USA under the auspice of corporate interests with well-funded legal abilities.

I highly recommend reading Robyn Meredith's book, The Elephant and the Dragon to gain more insight to this, and how legislation such as this that Representative Conyers is introducing is actually detrimental to the American Economy as a whole.

This issue of journals getting exclusive rights to research just because they published it, but ultimately someone else actually did, is ridiculous from the start. But if the research is public funded, then people end up paying for it 2 or more times over! The same goes for private companies getting patents and setting monopolistic prices, when the R&D was partially or totally publicly funded. It's just not fair! And how exactly does all this "promote science"?

I have to wonder why some enterprising Net Entrepreneur hasn't moved into the market to undercut these journals? Seems like you could crush them simply by publishing on the web, bypassing the cost of physical publication and distribution.

Re:

Now that I think about this more this idea makes a lot of sense. You could easily index articles, include links to related research, invite peer reviews from multiple disciplines, engage in professional discourse, foster collaboration, lobby for public and private funding, foster commercial interest, etc.

Overstating and oversimplifying

Once again, Mike is overstating and oversimplifying an issue that is more complex. And this particular issue has been around for almost 20 years.

STM publishing is a bit more complex than publishing digital music or even books. The articles are usually highly technical and costly to produce. But there are many, many facets to this issue than Mike covers (or than I can address in comments).

First, some perspective. Nearly all STM publishers allow authors to archive their manuscripts as soon as they are accepted for publication (of course, before that, they're free to archive their original unpublished manuscripts). Nearly all STM publishers have invested heavily in their own publishing platforms that make resource discovery and access to articles robust and usually free after an initial exclusivity period.

Institutional (university) archives, generally open to anyone associated with the university and often open to the public, have been around for many, many years, but have generally failed to achieve the same level of accessibility to research that most publishers provide and most university libraries are rethinking their archiving strategy.

Even PubMedCentral, the NIH site, makes use of the value added by publishers even with just pre-publication peer-review. Further, most STM publishers allow and/or facilitate delivery of the final manuscript (and sometimes the final published version) to the PMC archive, which makes use of the publisher's value-added editing, mark-up and prep of charts, illustrations and figures. This is not an inconsiderable value, as highly technical articles often require a lot of very specialized markup to make, for example, complex mathematical formulas render correctly digitally across different platforms, browsers, etc.

Most of the Open Access advocates try to minimize the value that commercial STM publishers add, while saying that Open Access journals add value. Open Access Journals are an interesting business model for scholarly communication, but they, too, have to pay the bills and either charge author fees to publish (usually thousands of dollars, with waivers for hardship authors) or survive on outside subvention in lieu of subscription revenue.

The other argument in favor of publishers that is regularly downplayed by Open Access advocates is the role of government mandated deposit of articles resulting from NIH (mainly medical at the moment) funded research is the fact that government is now becoming a publisher. If the commercial publishers are driven out of business, and government becomes a primary controller of such information, there is the very real danger of hidden censorship. Open Access advocates routinely dismiss this concern, yet there is ample evidence that the last administration manipulated the reporting of scientific information to suit their political agenda.

Copyright is only a very small facet to issues of scholarly publishing, which are more complex than this post would make out.

Re:

Since this is based in the U.S. and I am one of US ? How long can we sustain paying 1 to 3 to 100 to 1000 times the value of a product? How much of that MISSING portion can we count on as productive ? If $1 trillion is 63 MILES of $1000 bills, then how do we control who is sucking off of that ? Lawyers ? Pollutcicians ? ISP's ? Cable providers ? Telephone providers ? How many times are we expected to pay for content/creations when EDUCATION is So Vitally Much More Important ? Yet Brittany Spears, and Michael Jackson earn (how much more) more than the average content providers OF TODAY ? Should we not balance that with reality ? Or should we just say it outright ? HUMILIATION PAYS BIG $$$$$$$$$$$$$$$$$$$$

Serpiusly, keep thinking OPEN

Re: Overstating and oversimplifying

I've read your comments several times over and perhaps I fail to see something of interest.

As such, I wonder what it would take to reform IP law.

Remember, one of the critical reviews provided about "The Elephant and the Dragon" keys in on a major point:

In this thought-provoking and well-researched book, the author advises that the U.S. must strengthen its education system, promote innovation, forget about protectionism or unfettered free markets, and focus on creating jobs.

lulz

Even though honest liberals (if that's not an oxymoron) would admit to making the dichotomy "Republicans are corrupt dirtbags who have sold out to the rich and Democrats are corrupt dirtbags who have sold out to interests of which I APPROVE", it might still have caused more naive heads to explode.

Re: Re: Overstating and oversimplifying

Deposition where?

Note that there is something not mentioned in the discussion - the requirement is not just that you make your paper publically available - the requirement is that you deposit it in the PubMed Central archive. (See http://publicaccess.nih.gov/). In short, publishing it on, say, your own website is not enough. The reason the original law was enacted was that not enough scientists were doing this voluntarily. The reason scientists were not doing it (including people who put up preprints and final versions on their own sites) is that it was a major pain to do so because the deposition process was less than user friendly. It would be nice to encourage the Congress, if they are going to keep the requirement, to mandate that the NIH simplify the deposition process.

Re: lulz

I believe the two party system needs to go the way of the Whig Party.

George Washington was right when he spoke to the idea of Political Parties in his 1792 Farewell Address.

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Taxpayer funding

The reasearch belongs to those who paid for it. Let them decide.

Private business will tell you over and over that if they paid for it, it belongs to them. Why would this be any different ?
Is it because some private parties have found a loop hole which gives them a prefferred place at the trough ?

Re: Re: Overstating and oversimplifying

One of the salient points of the Open Access movement in scholarly publishing is that discussion of IP or copyright are largely irrelevant side issues.

The main issue is not necessarily who publishes scholarly material, it's who pays and how they pay. Everyone involved (from scholars, to libraries, to research funders) was fine with the current system until journal subscription prices started to rise far faster than library budgets (not to mention the proliferation of new journals). This is the so-called "serials crisis."

Open Access advocates ultimately don't care who publishes this material, they are advocating that the content should be made available for free to all users (as well as free of restrictions on reuse, especially of the research data underlying published articles) immediately upon "publication." This is "Gold OA." "Green OA" is the allowance for deposit of the final peer-reviewed manuscript of such content in open access repositories either before or immediately after publication.

But the production of scholarly content has to be paid for, no matter who publishes it or how it's published. There are no "scarcities" to sell to support this content, so ultimately libraries, universities, private funding organizations, or--most often--the government is going to be paying for this one way or another.

My main point in responding to Mike's post is that the issues are a bit different in this area, beyond general questions of IP or who pays.

Serials Crisis

Sorry, it is not "so-called", it is a crisis. The cost of journals have risen much faster than our ability to pay, so we cannot afford the resources that we used to provide to our patrons.

I am not sure everyone was 'fine' with the current system, it was just the only option. But now there are a number of other options, and they deserve to be explored. Some of these options are just as robust and just as useful, but cost a lot less. In many cases, a college, an academic society, or the library, are publishing the journal. They are more interested in making the content available and in providing a service, than making millions of dollars. Just because publishers need to pay the bills does not mean that we need to continue such a restrictive system.

And you are too kind to the publishers which grant all those privileges and free access. Many of them are still very restrictive and do not allow any version of an article to be put in an online repository--they consider that publishing. We have had to remove such content from our institutional repository.

But the main concern of this article still remains: private publishers are trying to stop the open publishing of research that we have already paid for. If the government produces something, it is owned by the people. The very idea of copyright and all the laws that come from it were allowed in the constitution for only ONE purpose, "To promote the Progress of Science and useful Arts." Why should private publishers be able to assert ownership to our public information?

By all means, let authors choose any publisher for their own articles. Let the publishers include articles that are based on the publicly funded research. Let them do whatever they want with their own or purchased content. But research that is funded by the government, that is paid for by tax dollars, that is owned by the people, ought to be copyright free in the US, just like the rest of the government products. And if there is money to be made off this, at least put it back into the system to pay back the tax dollars that were spent.